Legal Developments

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by Larry MacDonnell

Colorado Water
The Colorado Supreme Court upheld rules developed by the State Engineer respecting the confined aquifer in the San Luis Valley. Simpson v. Cotton Creek Circles, LLC. The rules essentially preclude any new groundwater pumping from this aquifer except on the basis of full replacement. The Court upheld this limitation because the interconnected surface and ground water systems are overappropriated so new depletions are assumed to injure existing rights.

Public Lands Grazing and the ESA
The 10th Circuit Court of Appeals denied the claims of the Center for Native Ecosystems that the Forest Service failed to meet its obligations under the Endangered Species Act when it authorized continued grazing in the Medicine Bow National Forest in Wyoming. Center for Native Ecosystems v. Cables. At issue was whether consultation with the U.S. Fish and Wildlife Service following designation of areas in the Forest as critical habitat for the previously listed Preble’s meadow jumping mouse failed to consider recovery of the mouse. The Court found that recovery had been adequately considered during the consultation process.

Compensatory Mitigation Under Section 404
The Army Corps of Engineers and EPA jointly issued a new set of regulations addressing compensatory mitigation for aquatic resources. The regulations provide three approaches: compensatory actions by permittees; use of approved banks; and approved in-lieu fee programs. The primary objective of the regulations is to provide standards that help ensure consistency among the three approaches. Mitigation banks are the preferred option, followed by in-lieu fees. The regulations recognize the potential benefits of compensatory mitigation actions that are part of a watershed management plan and allow for consideration of mitigation that is off-site and out-of-kind.